Caldwell v. City Of Rome

• Decision Date: 11 February 1932
• Docket Number: No. 21290.,21290.
• Citation: 44 Ga.App. 665,162 S.E. 829
• Parties: CALDWELL et al. v. CITY OF ROME.
• Court: Georgia Court of Appeals

44 Ga.App. 665

162 S.E. 829

CALDWELL et al.

v.CITY OF ROME.

No. 21290.

Court of Appeals of Georgia,

Division No. 2.

Feb. 11, 1932.

Error from Superior Court, Floyd County; James Maddox, Judge.

Action by T. D. Caldwell, administrator, and others, against the City of Rome. Judgment was entered dismissing the action, and plaintiffs bring error.

Affirmed.

Statement of facts by Jenkins, P. J.:

The charter of the city of Rome, as embodied in the Act of the General Assembly approved August 19, 1918 (Ga. Laws 1918, pp. 813, 853), provides by section 76 that "whenever said commission shall deem it proper to macadamize, pave or otherwise improve any of the streets, lanes or alleys, or to improve the sewerage or water works system of said city, they shall have a survey made of the streets, sewers and water works systems, and plans, specifications and estimates of the cost of the improvements contemplated, they shall establish and fix a grade of the streets to be improved and shall determine the size and location of the sewers and the mains for the water system; thereupon said commission by and through the city manager may then proceed to make said improvements as hereinafter provided."

Section 77 of the said act provides: "That the said Rome city commission shall have the right, power and authority to fix by ordinance and collect as other taxes are collected the amounts to be taxed against and paid by abutting property owners and street railway companies occupying the streets, for paving and macadamizing such streets so paved and macadamized, the basis of assessment to be as follows: Street railway companies shall be assessed so much of the cost of paving and macadamizing the street as is occupied by tracks, and two (2) feet on each side of the rails thereof, and in case there are two or more tracks on the same street, to require said street railway companies to pay the cost of paving and macadamizing for not more than four and one-half (4 1-2) feet between such tracks, except in cases where such street railway companies voluntarily locate their tracks wider apart than four and one-half (4 1-2) feet, in which event they shall pay for paving and macadamizing all space between said tracks, the balance of the cost of paving and macadamizing such streets, including street intersections, headers, curbing and intakes, shall be divided one-third (1-3) each to the respective abutting property owners, leaving one-third (1-3) to be paid by the city. In cases where the streets paved or macadamized, are not occupied by street railways the respective abutting property owners shall each be assessed one-third (1-3) the cost, and the city shall pay the other third of such paving and macadamizing. Said paving shall include all expenses incurred in doing the work, except grading."

Section 78 provides the manner of collecting assessments, authorizing the transfer of assessment fi. fas. without recourse, and stipulates that "(f) The method herein provided for the collection of the proportionate parts of paving accounts, from any and all persons and corporations liable therefor in favor of contractors and other transferees of executions, is for their use and benefit, and shall not be held or taken in any event to make the city liable on account thereof, or for court costs in contested cases or in any claim."

Section 79 provides for the letting of construction contracts.

Section SO provides as follows: "That the said commission shall have full power and authority to lay out, establish, plot, open, widen, narrow, straighten, extend, grade, pave, or macadamize streets, lanes, alleys, public grounds, parks, public buildings, wharves, landings, docks, bridges, viaducts, markets and other places within the said city, or to have same done under the direction of the city manager, and whenever the city commission shall exercise or desire to exercise the power of establishing, plotting, opening, widening, narrowing, straightening, extending or to do anything else which would involve the actual taking of private property, they shall proceed to do so as is now provided by the laws of the State of Georgia in Sections 5206 to 5235, inclusive, of the Civil Code of Georgia of 1910, and the amendments there-to, or any amendments that may hereafter be made."

It appears that certain paving was done on North Broad street, for which the city paid to the contractor its portion of the cost, and issued fi. fas. against the abutting property owners for their portions of such cost. These fi. fas. were transferred by the city, without recourse, to the contractor, in settlement of the remainder of the cost of the pavement. It was adjudicated by a decision affirmed by this court in Watson v. Bryant, 37 Ga. App. 768, 141 S. E. 920, that the fi. fas. were not collectible against the property owners, for the reason that the provisions of law set forth above, relative to paving contracts, had not been complied with. Thereupon the contractor sued the city, claiming the amounts due under such fi. fas., on the theory that the city itself was liable to the contractor thereon, even though no liability existed by virtue of the assessments made against the property owners, by reason of the fact that the city had acquiesced in and ratified the action of the commission in issuing such fi. fas. by reason of its acceptance of the benefits under the contract executed by the contractor. The trial court sustained a demurrer to the petition and dismissed the action, and the plaintiff excepted. It is the plaintiff's contention that, even though the plaintiff had contracted to accept as part payment under his contract for the paving the executions to be issued against the abutting property owners, and which he did accept in compliance with his agreement, upon their being transferred to him without recourse, they nevertheless did not constitute a valid payment by virtue of such agreement and...